[Ed. note. This is a very strange motion. I have a sneaking suspicion that the RIAA realizes it has a problem with its paperwork, something which went undetected last time around, but is unlikely to escape detection this time around, and Timothy Reynolds -- being an inexperienced lawyer -- thought this would be the best way to avoid the problem. Actually all he's succeeded in doing is to is to red flag the problem, because this motion has the chance of a snowball in Hell of being granted. -R.B.]

17 comments:

I find it humorous that the RIAA is saying that "Defendant intends to put Plaintiffs to an unnecessary burden". Well the whole trail is an unnecessary burden on the defendant so perhaps you should just suck it up.

Since plaintiffs acknowledge in their proposed Jury Instruction 11 that they have to prove they have proper copyright registrations, why would defendant, then, not be allowed to object if they thought the offered *proof* was insufficient?

"The recording by a recipient of information sent to that recipient cannot be, and was not, a violation of the law and, as such, it should not be suppressed."

I guess Charles Nesson likes to hear that out of the mouth of the RIAA-Lawyers. ;-) As he was discussed with his students saying something along the line as "we are in a group meeting, i have my little black olympus running as always in those settings, a call comes in, am i supposed to switch the recording off because the caller invades our setting?" [not literally his words, just my remembering of the recordings content]

Oh, and one question Ray, RIAA lawyers seems to make much out of the fact what counsel for defendant in the first trial objected/stipulated to or not to [here: certificates of copyright ownership].

I thought this is a new trial, the proceedings start at zero again.Is it your law that happenings at an earlier trial that was "canceled" does matter in a second one? Or is it that RIAA lawyers are yet again try to "invent" their own rules/settings for the second trial without that their statements/claims have any serious basis in your law?

To this man's observation, a lot of RIAA snowballs have been surviving in Hell just fine in the mass litigation effort - too many of them due to Magistrate Judges with obvious freezers in their offices.

It is undisputed that a user of KaZaA can download songs without sharing any songs in return. This is what MediaSentry claims it did.

This leads one to speculate that if a P2P filesharer employs anti-leeching technology, that MediaSentry would be unable to download from them, and hence not collect any evidence.

That leads to the further line of thought that because more sophisticated P2P users are more likely to employ such protections out of frustration with leechers who do not contribute in-kind to the filesharing community that only the most naive users will be the ones swept up in MediaSentry's illegal investigation methods and questionable evidence collection procedures.

The same line of reasoning applies to P2P file traders who require that you offer them files in order to download from them.

I. A NEW TRIAL IS A NEW TRIAL Defendant is not required to present the same case she presented at her first trial. That is the point of a new trial: having engaged new counsel, having refined her strategy, having seen what Plaintiffs presented and argued and what result they obtained in the first trial, Defendant is free to change her strategy for this trial, raise objections not previously made, assert rights not previously asserted, and, in general, put on her case unshackled by what happened at the earlier trial. See Ryan ex rel. Ryan v. McDonough Power Equipment, Inc., 734 F.2d 385, 387 (8th Cir. 1984). Rule 59 authorizes a grant of new trial “on all or some of the issues”; here, new trial was granted on the entire case. See Docket No. 197 (order granting new trial). Plaintiffs’ proposed exhibits according to the scheduling order for this trial, her objection cannot be procedurally barred.

I guess next time I wait a bit longer for my questions since they might become obsolete. ;-)

Alternately, this could simply be a stalling tactic, presenting spurious notions with very little chance of success, in an attempt to drag on the trial as long as possible, in order to run the defendant out of her pocketbook.

"Your honor, don't let the defendant get away with making us prove that we own these copyrights. We have hundreds of cases going on right now. If you let her prevail on this issue, all the other defendants will use that as a precedent. Can you imagine the financial burden to us?

By the way, even though we got valid registrations a few years ago, our dog ate them. We know we should have gotten certified copies before we started trial, but you know how it is.

We wouldn't really NEED certified copies, if it weren't for these pesky file sharers who make us keep suing them, so whether we win or lose, please make her pay for the proof -- if she hadn't made us sue her, we wouldn't need it, and after this is over, those copies will be useless to us."

"That leads to the further line of thought that because more sophisticated P2P users are more likely to employ such protections out of frustration with leechers who do not contribute in-kind to the filesharing community that only the most naive users will be the ones swept up in MediaSentry's illegal investigation methods and questionable evidence collection procedures.

The same line of reasoning applies to P2P file traders who require that you offer them files in order to download from them."

Absolutely right, and as one of the non-naive file-sharers I feel the need to assassinate all the naivety that I find on this blog. I think it's better that bad ideas are shot down here, by me, rather than in court with some poor sucker's life-savings on the line.

For the level of naivety required look at the logs presented in any case on this blog, and realize that the naive users have to have these files in their shared folder, computer on and file-sharing software running for long enough for MediaSentry to download every single file in the log.

So it is only the people who do not research how their file-sharing software works that are getting caught. You can be really stupid and still sweep out your shared folder regularly enough that MediaSentry cannot get a complete download.

Said really stupid person could be inquisitive and self educated, or they could have been struck by a holy cluebat wielded by someone with clue. However, given they know, they have clue and therefore the qualification to wield the holy cluebat.

If the default P2P client refused to allow more than 10 seconds or so of downloads, unless there are not enough copies on the network, it would prevent the operation of their hacked client and they would NEVER be able to get evidence regardless of the IQ of the user.

Of course, even if they did get the 10 second clip, you could always claim it was a MediaDecoy clip.....

"[...]as one of the non-naive file-sharers [...]" Don't forget that most of the cases we read about here are years old (assumed it is not a wrong positive by the "investigators" in that dragnet fishing) based on a behavior by schoolkids that simply not thought that it is immoral/illegal what they did. Remember that a few years ago evil kazza [the company that paid the RIAA one hundred million dollars in a settlement for their behavior!] advertised big and wide with "free downloads" and all this stuff. Why should an innocent schoolkid with moral values learned not to shoplift in a shop but without a degree in copyright law should have known any better a few years ago?I'm willing to bet that even you (if you have actually done infringing acts at all in the timeframes mostly at hand in those cases [2003 to ~2007] and are not just a troll who wants to abuse this blogs comment section) anonymous "expert" copyrightinfringer has used a few years ago software to share with settings that would have made it easy for those "investigators" to get a record on you. (No need to be ashamed of it!)If you are actually old enough to be a user of the "first generations" of sharing software you should know that this feature to browse the treasure of like minded persons was exactly what made those software tools so valuable to explore new music that would probably fit to your own musical taste. THAT was the IMO great thingy about this software. That it was also the feature that made it easy for the "investigators" to get the most unsuspecting non guilty feeling persons out there in their fishing drag net was the negative side effect.

"[...]computer on and file-sharing software running for long enough for MediaSentry to download every single file in the log.""You seems to not have even read carefully (or understood) the "evidence" so far! While the RIAA still claims it is highly secret stuff what the "investigators" did, what the record shows so far is that they just download one or 2 hands full of songs from a "victim". They do not download those 4-5-6 or even more hundred songs that those "early adopter" Kazza [and clones] users had in their share. That would not be practical given the average uploadline of those american households but that is a factor that even the RIAA-lawyers neglect to mention and instead use hyperbolism about distributing millions of copies to millions of people by this one poor schoolkid).

"So it is only the people who do not research how their file-sharing software works that are getting caught."Why should they had to? As pointed out above, back then the evil software companies like Kazza advertised big and wide all over the Net that it was OK to use the software, that there was nothing illegal about the use, so why should one innocent schoolkid care how software works and what it does if there is nothing dangerous associated with it? "[...]that MediaSentry cannot get a complete download." Back in the days at issue cleaning out the share folder was a) nothing any normal computer user would do. b) would be contrary to the idea and concept behind those types of software. and c) does it absolutely not matter if MS got a complete copy since RIAA label lawyers send you a letter already for "filenames" (the exhibit B "recordings" not for infringing copies they got from a victim!

In short, your post is nonsense, and has next to nothing to do with the topic of this blog which is NOT to educate how to do copyrightinfringements without getting caught, but to show that the "catching of infringers" was borderline to incompetence and that Sony-BMG, EMI, VIRGIN and WARNER are abusing the courts instead of having adopted to the p2p phenomenon in the beginning years of it.

1. Nobody here wants to teach you how to illegally download music without getting caught.

2. It's overly simplistic, and often begging the question, to say that Defendants in these cases should have been smart enough not to use KaZaA. Some Defendants didn't use computers or KaZaA, and many who did may not have broken the law for various reasons.

If the jury finds that defendant was indeed using an "online media distribution system" to infringe plaintiffs' 24 copyrighted song files, plaintiffs can recover actual damages only -- and no statutory damages -- as to any song whose copyright registration effective date comes later than the date defendant began using that "online media distribution system".

E.g., if defendant is found to have started using Kazaa in 2003, and 20 of the 24 song files have copyright effective registration dates of 2004 or later, then the RIAA can recover statutory damages on only 4 of the songs.

Agreed. To authenicate my age I can say that I read the shared folders of many WinMX users and in quite a few found that the shared directory had a boilerplate saying that neither feds, nor persons working for the recording industry were permitted to enter / download.

"(No need to be ashamed of it!)"

I'm not ashamed of my dedication to RTFM and configure my software myself. I'll keep poorly maintained software on my computer right after I have died from poorly maintained bearings on my skateboard. Car analogies are popular on slashdot, if the brakes are not maintained on a car you own, you can't prove the state of the brakes is not your fault, even if you know sweet FA about brake maintenance. AFAIK bad brakes are only illegal if your driving with them though.

"Why should they had to?"

Have you ever seen a nature documentary where the african hunting dogs catch the gazelles that run the fastest?

"Nobody here wants to teach you how to illegally download music without getting caught."

But if you can learn how to learn here it is a good thing. Otherwise, the plan is to fight the old system without learning the new system that is rendering the old system obsolete. Given that it is use of the new system that people are being sued for, that plan would be stupid.

"[2003 to ~2007] "By that time i was getting out of the game.

"to show that the "catching of infringers" was borderline to incompetence"

Ray outlines the incompetence of their lawyers. I believe the technical staff are given orders by the same incompetent senior management that gives the lawyers their orders. From my experience, competent workers do not like to work for incompetent bosses for long.

"Some Defendants didn't use computers or KaZaA, and many who did may not have broken the law for various reasons."

So what chain of evidence lead to them being accused? The RIAA assume that every ISP's address records are both truthful and accurate enough to be worth getting the court order to obtain, then submit as God's honest truth to the next court. Some ISP records may be inaccurate. Look to the accuracy of the ISP records if your client has never had an internet connection and has still been accused. You may well find someone in the company to testify about their companies methods for address verification of customers, and their assumed requirements for such.

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove